Sabarimala reference hearing: Live updates from Supreme Court - Day 14

Gupta: Essential part of Hindu religion is right to worship an idol. If you exclude them from it you exclude them from practicing religion ...

Justice Nagarathna: In the name of social reform, you cannot breach or violate the freedom granted under Article 25(1).

Gupta: You cannot hollow out religion entirely, but if it needs change and if done somebody cannot use 25(1) against it.

Senior Advocate Gupta: Now, as far as social welfare and reform are concerned, I only wish to make one submission. Why are these concepts located within the constitutional provisions dealing with religion at all? If the issue were merely social, then there would be no reason for it to appear within the articles on religious freedom.

The reason, I respectfully submit, is that many social rules and practices historically came to be sanctified as religious customs. Therefore, if the State wishes to undertake social reform, it may inevitably have to engage with religion itself. That is why the Constitution expressly grants that power to the State.

And this is important: this is not judicial review in the strict sense. This is not about the Court itself deciding matters of reform. It is about the State making that determination through legislation.

The Constitution itself creates a separate compartment for such legislative intervention, thereby making it clear that when the State acts for social welfare and reform under Article 25(2)(b), it is not necessarily trespassing upon protected religious rights.

Justice Aravind Kumar: If something is followed for centuries why do you want to deprive them of it?

Gupta: It was not being followed that is the point.

Gupta: The earlier discussion concerned conflicts either within the same religion or between two religions. But here the conflict is of a different nature. The conflict here is between what constitutes a religious practice and what constitutes a secular activity associated with religion.

That distinction itself is not expressly articulated in constitutional language as “religious practice versus secular activity,” but it emerges from the interpretation of Article 25.

At one point, Your Lordships had asked whether there exists any test to distinguish the two. The only judgment which directly addresses such a test is Ratilal. That judgment says that ultimately common sense will have to be applied.

Now, that may not provide a complete answer, but it is the only guidance available on how one determines whether something is secular or religious.

At that stage, much depends on where the balance is drawn. A person deeply rooted in scriptural traditions may draw the balance more toward the religious side. On the other hand, someone approaching the issue purely from a constitutional perspective may draw the balance more toward secularism.

Therefore, ultimately, this becomes a matter for judicial determination. I am not suggesting that Your Lordships should formulate an exhaustive test. It may well be left to courts to determine on a case to case basis in appropriate matters.

Senior Advocate Jaideep Gupta: For instance, in the Ananda Margi case, namely Acharya Jagdishwaranand, the followers used to take out annual processions in which they performed the Tandav dance. There was no dispute that the Tandav dance formed part of their religious practice.

However, Section 144 notices were issued because there was an apprehension of breach of peace. The notices were challenged on the ground that the followers had a religious right to perform the Tandav dance publicly.

This Court held that while the Tandav dance may indeed form part of their religious practice, it was not essential for the practice to be carried out in public. Therefore, the Section 144 restrictions were upheld.